CITATION: Switzer v. Switzer, 2017 ONSC 6686
COURT FILE NO.: 16-FC-1046
DATE: 20171117
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MICHAEL SWITZER, Applicant
-and-
COLLEEN CATHERINE JOAN SWITZER, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Paul Fitzgerald, for the Applicant
Gina Rossi, for the Respondent
HEARD: By written submissions
costs ENDORSEMENT
Background
[1] On September 12, 2017, I heard a motion brought by the applicant husband (“the husband”) in which he sought a reduction of the temporary child and spousal support payable by him to the respondent wife (“the wife”) pursuant to a without prejudice partial separation agreement. The wife brought a cross-motion seeking orders for increased child and spousal support based on an imputed income on the husband, as well as contributions towards special and extraordinary expenses, the determination of arrears owing from January 2016 to present, and interim disbursements of $50,000 payable by the husband to her to cover accounting and legal fees. The September 12 hearing was the last of three court appearances by the parties before the Court to deal with the husband’s motion. Since the cost of each step leading to the hearing was reserved to the judge hearing the motion, I will provide a brief summary of each.
[2] On June 29, 2017, after being served with the husband’s motion for a reduction of child and spousal support, the wife brought a motion in procedural court seeking various relief, including an order barring the husband from proceeding with his motion, for the payment of over $63,000 in arrears, for the payment of special expenses, for exclusive possession of the matrimonial home, and for disclosure. Justice Shelston, who presided on this motion, dismissed virtually all of the motion on the basis that the relief sought, except for the request for disclosure, were not procedural but substantive. Since the financial disclosure sought by the wife was relevant to the husband’s motion for a reduction of support, he allowed the wife’s motion on disclosure to be brought before a judge prior to the September 12 hearing, but ordered that the balance of her claims for relief be adjourned to the September 12 hearing.
[3] On July 31, 2017, the disclosure motion took place before me. At that time, the wife, in addition to her claim for extensive financial disclosure from the husband, sought an order for interim disbursements to cover legal and accounting fees. Further, she sought an adjournment of the September 12 motion to allow her sufficient time to review the husband’s financial disclosure and to obtain valuation reports. The husband also sought extensive financial disclosure from the wife by way of a cross-motion. I dismissed the wife’s request for an adjournment of the September 12 motion, ordered the husband to provide some of the disclosure sought (minor disclosure compared to what was being sought), ordered the wife to provide most of the disclosure sought by the husband, and deferred the wife’s motion for interim disbursements to cover legal and accounting costs.
[4] At the September 12 hearing, I allowed the husband’s motion for a reduction of child and spousal support and dismissed the wife’s claims for the determination of arrears owing from January 2016 to present, and for interim disbursements to cover accounting and legal fees. While the wife was seeking to impute an income of $511,259 on the husband, and he was proposing that a $139,000 income be attributed to him, I ordered support to be paid on the basis of an income of $250,000. It is important to note that this was the amount that the husband was proposing during his counsel’s oral argument at the motion.
[5] There were also other more minor issues raised in the context of all three motions, but very little time was devoted to these issues. I find that for the purpose of costs, they were not relevant.
The Husband’s Position
[6] The husband takes the position that he was the successful party at all three court appearances. He has been successful in securing a variation of his support obligations at a more reasonable range on an interim basis, and successfully defended all of the wife’s “unreasonable demands.” He seeks his costs on a partial indemnity scale. The total costs incurred for all three court appearances were in the amount of $13,893.69 inclusive of HST and disbursements.
The Wife’s Position
[7] The wife takes the position that success was mixed in these motions, and that overall, she was the most successful party. She claims that the husband behaved unreasonably (by failing to provide proper financial disclosure), and seeks her costs as the successful party in the amount of $15,000.
Analysis
[8] Under Rule 24 (1) of the Family Law Rules, O. Reg. 114/99, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. I fail to understand on what basis the wife believes that she was the most successful party in this case. In her costs submissions, she claims that she was the successful party with regards to the husband’s request to “eliminate/reduce” child support and to “eliminate” spousal support. The husband never took such position (to eliminate his child or spousal support). He sought to reduce his support obligations and he was successful in doing so.
[9] The wife also considers that she was successful in imputing income on the husband. However, she disregards the fact that she was trying to impute an income of over $500,000, which was denied in favour of the level of income suggested by the husband. The wife also claims that she was successful in obtaining financial disclosure from the husband. As stated above, the financial disclosure ordered against the husband was very minor compared to the long list of disclosure she was seeking (much of which, it turned out at the July hearing, the husband had already provided). Further, a much longer list of disclosure was ordered to be provided by the wife.
[10] It is clear to me that the husband was, overall, the successful party in all three motions. He is therefore entitled to his costs for all three court appearances.
[11] Rule 24(11) of the Family Law Rules outlines that the Court shall take into consideration the following factors in setting an amount for costs: the importance, complexity or difficulty of the issues; the reasonableness or not of each party’s behaviour; the lawyer’s rates; the time properly spent on the case; and, any other relevant matter.
[12] The issues were not overly complex, although they were obviously important to the parties. I do not find that either party has acted unreasonably or in a way that would affect the determination of the husband’s cost entitlement as the successful party. While the wife did make an Offer to Settle, that offer was not more beneficial to the husband than what he obtained at the September 12 motion. The husband did not make an Offer to Settle.
[13] I have looked at the husband’s counsel’s Bill of Costs which shows total costs in the amount of $13,893.69 inclusive of HST and disbursements for all three court appearances. This is less than one half of the legal fees incurred by the wife for the same court appearances (her total legal fees were in the amount of roughly $30,000). Presumably, the husband, who is an experienced litigator, contributed a significant amount of time and effort in preparing for the various court appearances which resulted in relatively low legal fees being incurred by him, and a substantial saving for the wife from a cost-award perspective.
[14] Nevertheless, the husband is seeking a partial indemnity costs award as a result of his success in these motions, payable from the wife’s share of the net proceeds from the sale of the matrimonial home, when such sale closes, which I find reasonable in the circumstances.
Decision
[15] Based on all of the above, I order the wife to pay cost in the amount of $7,000 to the husband upon the closing of the sale of the parties’ matrimonial home, from her share of such proceeds.
Madam Justice Julie Audet
Date: November 17, 2017
CITATION: Switzer v. Switzer, 2017 ONSC 6686
COURT FILE NO.: 16-FC-1046
DATE: 20171117
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MICHAEL SWITZER, Applicant
-and-
COLLEEN CATHERINE JOAN SWITZER, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Paul Fitzgerald, for the Applicant
Gina Rossi, for the Respondent
costs ENDORSEMENT
Audet J.
Released: November 17, 2017